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Court of Appeals of Indiana | Memorandum Decision 19A-JT-685 | November 12, 2019 of 23

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be

regarded as precedent or cited before any court except for the purpose of establishing

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

A. David Hutson

Hutson Legal Jeffersonville, Indiana

John L. Grannan Assistant Public Defender

Clark County Public Defender’s Office Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Abigail R. Recker

Robert J. Henke Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination of the Parent-Child Relationship

of K.C., Mother, D.C., Father,

and D.C., D’A.C., Da.C., and

K.C., Children,

K.C.,

Appellant-Respondent,

v.

Indiana Department of Child

Services,

Appellee-Petitioner.

November 12, 2019

Court of Appeals Case No. 19A-JT-685

Appeal from the

Clark Circuit Court

The Honorable

Vicki L. Carmichael, Judge

Trial Court Cause Nos.

10C04-1808-JT-31 10C04-1808-JT-32

10C04-1808-JT-33

10C04-1808-JT-34

Dynamic File Stamp


Kirsch, Judge.

[1] K.C. (“Mother”) appeals the juvenile court’s order terminating her parental

rights to her children, D.C., D’A.C., Da.C., and K.C. (“Children”). Mother

raises several issues on appeal, which we consolidate and restate as:

I. Whether the juvenile court abused its discretion when it

admitted drug screen results under the business records

exception to the rule against hearsay; and

II. Whether the juvenile court’s order terminating Mother’s

parental rights to Children was clearly erroneous because

(A) the evidence did not support the findings of fact and

(B) the findings of fact did not support the juvenile court’s

conclusions that there was a reasonable probability that

the conditions that resulted in Children being removed and

placed outside of Mother’s care would not be remedied

and that termination of Mother’s parental rights was in the

best interests of Children.

[2] We affirm.

Facts and Procedural History

[3] Mother and D.C. (“Father”)1 are the parents of D.C., born January 27, 2008,

D’A.C., born December 8, 2010, Da.C., born October 21, 2012, and K.C., born

November 20, 2013. Appellant’s App. Vol. 2 at 36, 40, 44, 48. Mother also has a

1 Father’s parental rights were also terminated on February 22, 2019 in the same order that terminated

Mother’s parental rights. However, Father does not join in this appeal. We will, therefore, confine the facts

to only those pertinent to Mother’s appeal.


sixteen-year-old daughter, M.M., who was not the biological daughter of

Father. Tr. Vol. 2 at 7.

[4] In 2014, Mother became involved with the Indiana Department of Child

Services (“DCS”) because she was dealing marijuana out of her home while

Children were present. Id. at 61. At that time, Children were removed from

Mother’s care for several months, and when they were returned to Mother’s

care, there was no running water or electricity. Id. at 9. At that time, there was

also domestic violence occurring in the home, where Father would hit and

choke Mother. Id. at 8.

[5] In May 2016, DCS received a report alleging Children were victims of neglect

because Mother and a friend were parenting Children while under the influence

of illegal substances. Id. at 61. DCS removed Children2 from Mother’s care on

May 13, 2016, after Mother tested positive for methamphetamine and

amphetamine. Ex. Vol. 3 at 33; Tr. Vol. 2 at 61-62. Father was incarcerated at

that time for charges relating to domestic violence between him and Mother.

Tr. Vol. 2 at 85-86. Mother had a history of DCS involvement due to her drug

use and tested positive for amphetamine and methamphetamine on May 7,

2016. On May 16, 2016, DCS filed petitions alleging that Children were

children in need of services (“CHINS”) due to Mother’s substance abuse issues

and her admission that she wanted to kill herself. Ex. Vol. 3 at 24-27, 75-78,

2 Although M.M. was also removed from Mother’s care at the same time as Children, the record is unclear as

to why M.M. was not a part of the termination proceedings at issue.


130-33, 186-89. On June 2, 2016, Mother admitted that Children were CHINS

due to her substance abuse issues, which required treatment. Id. at 6, 34, 85,

140, 196. On June 14, 2016, the juvenile court entered its order adjudicating

Children as CHINS, and on August 20, 2016, it entered its dispositional decree

and order of participation. Id. at 6-7, 8. The juvenile court ordered Mother to

maintain contact with the Family Case Manager (“FCM”), keep all

appointments with service providers, participate and complete an intensive

family preservation program, complete a substance abuse assessment and

follow all recommended treatment, submit to random drug screens, maintain

suitable housing, and attend all scheduled visitations. Id. at 36-41, 87-92, 142-

47, 198-203.

[6] Mother “had a lengthy history of using substances” and had used drugs since

she was a teenager. Tr. Vol. 2 at 97. In November 2016, after being referred by

DCS, Mother completed a substance abuse assessment with Danielle Blair

(“Blair”), a clinical therapist. Id. at 96. During the assessment, Mother

“presented with anxiety and depression symptoms[,] and . . . she . . . admitted

to marijuana use at that time.” Id. at 97. Mother also had a “lengthy history of

domestic violence and early childhood trauma.” Id. at 102. Blair

recommended that Mother participate in individual therapy to address

substance use, triggers, and coping skills; case management; parenting

education; and more education on substance use.” Id. at 98. Blair believed that

without treatment, Mother would continue to have problems with substance


abuse because Mother “was presenting with little coping skills or ability to

manage her emotions,” and “she needed more support.” Id.

[7] In December 2016, Mother began treatment with Blair with the goals being to

address past trauma, establish coping skills and emotion regulation, understand

the link between her personal history and substance use, and develop a recovery

and management safety plan. Id. at 98-99. Mother’s participation in treatment

was not consistent; there were periods where she would engage in treatment

consistently for weeks or a month, and then her participation would “[f]all off.”

Id. at 99. There were several times when Mother was incarcerated and unable

to attend. Id. Blair was able to provide treatment to Mother during her

incarceration, but not as consistently as when she was not incarcerated. Id. It

was difficult for Blair to manage Mother’s recovery without long-term

consistent treatment. Id. at 100. The last time Blair met with Mother was when

she saw her in the Clark County Jail in November 2018. Id. at 99.

[8] While the present case was pending, Mother frequently tested positive for illegal

substances, and in November 2017, the juvenile court, after a hearing on the

parents’ progress, found that Mother had ten positive drug screens since May

2017 and had refused two screens since September 2017. Ex. Vol. 3 at 52-54,

214-16. The State filed petitions to revoke Mother’s probation, in part, because

she tested positive for amphetamine and methamphetamine on September 11

and October 4, 2017. Ex. Vol. 4 at 39-41, 62, 68. Mother admitted that she did

not refrain from drug use prior to her incarceration and that she would have

“spurts where [she] would be clean” and then would relapse. Tr. Vol. 2 at 4.


[9] On January 31, 2017, Mother was charged with Level 6 felony possession of

methamphetamine, Class C misdemeanor possession of paraphernalia, and

Level 6 felony auto theft. Ex. Vol. 4 at 24, 33-36. On April 17, 2017, Mother

pleaded guilty to Level 6 felony possession of methamphetamine and Level 6

felony auto theft and was sentenced to an aggregate sentence of two years with

one year suspended to probation. Id. at 27, 37. Several petitions to revoke

probation were filed against Mother because she tested positive for illegal

substances and failed to comply with substance abuse treatment. Id. at 28-31,

39-41, 43, 57-60, 63-66. As a result of these petitions to revoke, Mother’s

suspended sentence was revoked, and she was serving that sentence at the time

of the termination proceedings. Tr. Vol. 2 at 41-44. During the CHINS and

termination proceedings, Mother was also charged with several more offenses,

including Level 6 felony escape, Level 6 felony possession of

methamphetamine, Level 6 felony possession of methamphetamine, Level 6

felony possession of a narcotic drug, Class A misdemeanor possession of a

synthetic drug or lookalike substance, Class C misdemeanor possession of

paraphernalia, Level 6 felony theft, and Class B misdemeanor unauthorized

entry of a motor vehicle. Ex. Vol. 4 at 73, 78, 90, 98.

[10] Supervised visitation between Mother and Children began in July or August

2016, and Mother was mainly compliant and regularly participated, missing

approximately one visit per month. Tr. Vol. 2 at 68, 124. Children enjoyed

seeing Mother, and there were no major concerns during visitation. Id. at 124.

The referral was closed in November 2017 when Mother was incarcerated. Id.


at 68, 124. In January 2018, after Mother was released from jail, Children’s

therapist, Nina Fox (“Fox”), took over supervising visitations between Mother

and Children. Id. at 23-24. Mother was supposed to contact Fox to schedule

visits, but she failed to do so, and then she became incarcerated again. Id. at 24.

The only visitation that Fox supervised between Mother and Children occurred

during the summer of 2018 at the jail while Mother was incarcerated. Id. at 22,

24. That visitation was the last time Children saw Mother. Id. at 24.

[11] Since the beginning of the CHINS case, Children received therapeutic services

from Fox. Id. at 21. She has sessions with Children once or twice a week, and

she met with Children both individually and as a group. Id. at 28-29. Fox

worked with Children on emotional stability because they had been through a

lot of trauma and had attachment, anger, and behavioral issues. Id. at 21.

Following the visit between Children and Mother in jail, Fox had to work with

Children on anger and grief and dealing with the rejection of not having Mother

in their lives. Id. at 25.

[12] On August 9, 2018, DCS filed petitions to terminate Mother’s parental rights to

Children. Appellant’s App. Vol. 2 at 36-51. On January 8 and 15, 2019, the

juvenile court held an evidentiary hearing on the petitions. Id. at 7, 13-14, 19-

20, 25-26. At the time of the hearing, Mother was incarcerated in part for the

probation revocations that were filed against her, and she had been incarcerated

for approximately eight months. Tr. Vol. 2 at 40. Mother testified that her

release date was in May 2019. Id. at 41.


[13] At the time of the evidentiary hearing, Children had been placed in the same

foster home and were doing well. Id. at 62-63. At the hearing, Fox testified

that she believed it was in Children’s best interests to remain in their current

foster home and for Mother’s parental rights to be terminated because Children

have gone through this “rollercoaster ride” long enough. Id. at 25. The FCM

testified that termination of Mother’s parental rights was in Children’s best

interests because Children have been removed from Mother’s care for a total

time of almost four years, including their removal in the prior DCS case, and

Children are currently in a home that allows them to do normal activities and

that “is the best thing for them moving forward.” Id. at 69-71. The court

appointed special advocate (“CASA”) also recommended the termination of

Mother’s parental rights because Children were in a loving home that provided

them with stability, and she testified that she believed that termination was in

Children’s best interests. Id. at 131. DCS’s plan for Children upon the

termination of parental rights was adoption. Id. at 71.

[14] At the conclusion of the hearing, the juvenile court took the matter under

advisement. On February 22, 2019, the juvenile court issued its order

terminating Mother’s parental rights to Children. Mother now appeals.

Discussion and Decision

I. Admission of Evidence

[15] Mother argues that the trial court abused its discretion when it admitted

certified drug screens from Forensic Fluid Laboratories and Redwood


Toxicology. The admission of evidence is entrusted to the sound discretion of

the juvenile court. In re A.F., 69 N.E.3d 932, 941-42 (Ind. Ct. App. 2017), trans.

denied. We will find an abuse of discretion only where the juvenile court’s

decision is against the logic and effect of the facts and circumstances before the

court. Id. at 942. “If a juvenile court abuses its discretion by admitting the

challenged evidence, we will reverse for that error only if the error is

inconsistent with substantial justice or if a substantial right of the party is

affected.” Id.

[16] Mother contends that it was an abuse of discretion for the juvenile court to

admit DCS Exhibits 12, 13, and 14, her drug test results, which were admitted

over her objection, because they were hearsay. Specifically, Mother asserts that

the exhibits did not qualify as business records and were, therefore, not

admissible under that exception. She maintains that the exhibits were not

business records because the drug test results were documented for the benefit

of DCS and the laboratories that produced the reports do not depend on the

records to function.3

3 Mother relies on a recent opinion of this court for her argument, In re L.S., 125 N.E.3d 628 (Ind. Ct. App.

2019). In that case, a panel of this court found that the reports of the mother’s drug test results did not fall

under the business records exception because it was not shown that the laboratory that produced the reports

depended on the records to operate or conduct business, and instead, the drug test results were documented

for the benefit of DCS, necessitating expert testimony and the opportunity for cross-examination for the

admission of the evidence. Id. at 634. However, the court went on to find that the admission of the drug test

results was harmless because the trial court’s judgement was supported by substantial independent evidence.

Id. DCS brings to our attention another recent case from a different panel of this court, where drug test

results were found to fall under the business records exception because the laboratory functions

independently from any law enforcement body or state agency. In re K.R., No. 19A-JT-478, 2019 WL


[17] Assuming, without deciding, that it was error for the juvenile court to introduce

DCS Exhibits 12, 13, and 14 under the business records exception to the rule

against hearsay, we conclude that it was harmless error. “‘The improper

admission of evidence is harmless error when the judgment is supported by

substantial independent evidence to satisfy the reviewing court that there is no

substantial likelihood that the questioned evidence contributed to the

judgment.’” In re L.S., 125 N.E.3d 628, 633 (Ind. Ct. App. 2019) (quoting In re

E.T., 808 N.E.2d 639, 645 (Ind. 2004)). Here, the juvenile court’s judgment, as

discussed below, was supported by substantial evidence independent of these

exhibits that satisfy us that its determination stands without reliance on those

exhibits.

II. Findings and Conclusions

[18] As our Supreme Court has observed, “Decisions to terminate parental rights are

among the most difficult our trial courts are called upon to make. They are also

among the most fact-sensitive -- so we review them with great deference to the

trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014).

While the Fourteenth Amendment to the United States Constitution protects

the traditional right of a parent to establish a home and raise her child and

parental rights are of a constitutional dimension, the law allows for the

termination of those rights when a parent is unable or unwilling to meet her

4678411, at *5 (Ind. Ct. App. Sept. 26, 2019). Because we determine that any error in admitting the evidence

in the present case was harmless, we do not reach the possible conflict between these two cases.


responsibility as a parent. Bester v. Lake Cty. Office of Family & Children, 839

N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

2001), trans. denied. Parental rights are not absolute and must be subordinated

to the child’s interests in determining the appropriate disposition of a petition to

terminate the parent-child relationship. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct.

App. 2013). The purpose of terminating parental rights is not to punish the

parent but to protect the child. In re D.P., 994 N.E.2d 1228, 1231 (Ind. Ct. App.

2013). Termination of parental rights is proper where the child’s emotional and

physical development is threatened. Id. The juvenile court need not wait until

the child is irreversibly harmed such that his physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship. Id.

[19] When reviewing a termination of parental rights case, we will not reweigh the

evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and

reasonable inferences that are most favorable to the judgment. Id. Moreover,

in deference to the trial court’s unique position to assess the evidence, we will

set aside the court’s judgment terminating a parent-child relationship only if it is

clearly erroneous. Id. at 148-49. A judgment is clearly erroneous only if the

legal conclusions made by the juvenile court are not supported by its findings of

fact, or the conclusions do not support the judgment. In re S.P.H., 806 N.E.2d

874, 879 (Ind. Ct. App. 2004).


[20] Where, as here, the juvenile court entered specific findings and conclusions, we

apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct.

App. 2008), trans. denied. First, we determine whether the evidence supports the

findings, and second, we determine whether the findings support the judgment.

Id. A finding is clearly erroneous only when the record contains no facts or

inferences drawn therefrom that support it. Id. If the evidence and inferences

support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child

Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

[21] Before an involuntary termination of parental rights may occur, the State is

required to allege and prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that

resulted in the child’s removal or the reasons for placement

outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the

parent-child relationship poses a threat to the well-being of the

child.

(iii) The child has, on two (2) separate occasions, been

adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of

the child.


Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these

allegations in termination cases is one of clear and convincing evidence. In re

H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a

petition described in section 4 of this chapter are true, the court shall terminate

the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).

A. Findings Not Supported by the Evidence

[22] Mother first argues that sixteen of the juvenile court’s findings are merely

recitations of testimony and are, therefore, improper findings of fact. Under

Indiana Code section 31-35-2-8(c), a juvenile court “shall enter findings of fact

that support the entry of the conclusions” to terminate the parent-child

relationship. “‘A court or an administrative agency does not find something to

be a fact by merely reciting that a witness testified to X, Y, or Z. Rather, the

trier of fact must find that what the witness testified to is the fact.’” Moore v.

Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 224 (Ind. Ct. App. 2008)

(quoting In re T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App. 2003)). “Additionally,

the trier of fact must adopt the testimony of the witness before the ‘finding’ may

be considered a finding of fact.” In re T.J.F., 798 N.E.2d at 874. This rule

ensures that the parties “know the evidentiary bases upon which the ultimate

finding rests” and “enable[s] [them] to formulate intelligent and specific

arguments on review.” Id. (citing Perez v. U.S. Steel Corp., 426 N.E.2d 29, 32

(Ind. 1981)).


[23] Mother is correct that sixteen of the juvenile court’s findings of fact4 appear to

be a mere recitation of the evidence presented. See Appellant’s App. Vol. 2 at 28,

29, 32. However, these findings of fact are proper because the juvenile court

found the cited testimony of the witnesses that was set forth in the findings of

fact to be true and it adopted the testimony as such. Before setting forth its

findings of fact, the juvenile court specifically stated, “The Court finds the

following facts and reasonable inferences of fact by clear and convincing

evidence.” Id. at 28. Therefore, the juvenile court, in its order, notified Mother

as to “the evidentiary bases upon which the ultimate finding rests.” In re T.J.F.,

798 N.E.2d at 874.

[24] Mother next argues that nineteen other findings of fact are not valid because

there is no evidentiary support without DCS Exhibits 12, 13, and 14.

Specifically, she asserts that findings 31, 32, 34, 35, 36, 38, 41, 43, 44, 45, 49,

50, 51, 52, 53, 54, 55, and 58 should not be considered by this court because

they have no evidentiary support in the record.5 DCS concedes that, with the

exclusion of DCS Exhibits 12, 13, and 14, findings 31, 35, 36, 38, 41, 44, 45, 49,

50, 52, and 53 are not supported by the evidence presented at the hearing.

4 We note that four of these sixteen findings do not refer to Mother and are solely related to Father.

5 In her Appellant’s Brief, Mother also argues that finding 33 does not have evidentiary support; however, in

her Reply Brief, she concedes that finding 33 was not based on DCS Exhibits 12, 13, and 14, and therefore,

can be considered in our determination. Appellant’s Br. at 16; Reply Br. at 7. We also note that finding 58

only relates to drug use by Father and, therefore, does not pertain to the termination of Mother’s parental

rights. Appellant’s App. Vol. 2 at 31.


[25] However, findings 32, 34, 43, 51, 54, and 55 were supported by evidence that

was independent from DCS Exhibits 12, 13, and 14. Findings 32 and 34 state

that on both November 20 and 28, 2016, Mother tested positive for

amphetamine and methamphetamine. Appellant’s App. Vol. 2 at 29. The FCM

testified without any objection that Mother tested positive for amphetamine and

methamphetamine on November 20 and 28, 2016. Tr. Vol. 2 at 86-87. Finding

43 states that on June 6, 2017, Mother tested positive for alcohol and

buprenorphine, and finding 51 states that on July 13, 2017, Mother tested

positive for alcohol and opiates. Appellant’s App. Vol. 2 at 30. The records from

the underlying CHINS cases show that Mother tested positive for alcohol and

Suboxone [buprenorphine] on June 6, 2017 and that she tested positive for

alcohol and Hydrocodone on July 13, 2017.6 Ex. Vol. 3 at 14, 15, 176, 177.

Findings 54 and 55 state that on both September 11 and October 4, 2017,

Mother tested positive for amphetamine and methamphetamine. Appellant’s

App. Vol. 2 at 30. DCS Exhibit 7, which consisted of records of a probation

revocation filed against Mother, supported this finding. Ex. Vol. 4 at 40, 44-45,

62, 68.

6 At the beginning of its order, the juvenile court took judicial notice of its own previous findings and orders

in the underlying CHINS cases and the records from the underlying CHINS cases were admitted into

evidence at the evidentiary hearing without any objection. Appellant’s App. Vol. 2 at 27; Tr. Vol. 2 at 6. Under

Indiana Evidence Rule 201(b), a court may take judicial notice of records of other court proceedings, and if

those records are included in the record on appeal, they can be relied upon by a party in making its

arguments. In re D.K., 968 N.E.2d 792, 796-97 (Ind. Ct. App. 2012).


B. Conclusions Not Supported by the Findings

[26] Mother first argues that the juvenile court’s findings did not support its

conclusion that there was a reasonable probability that the conditions that

resulted in Children’s removal and continued placement outside of the home

would not be remedied. She asserts that the juvenile court’s findings do not

support that her drug use would not be remedied because many of the findings

were not valid, and those that were, are not sufficient to support the conclusion

that conditions will not be remedied because they did not establish “a pattern

that created a probability of future neglect.” Appellant’s Br. at 20.

[27] In determining whether there is a reasonable probability that the conditions that

led to a child’s removal and continued placement outside the home will not be

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions

led to the child’s placement and retention in foster care, and, second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. In the second step, the trial court must judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing a parent’s recent improvements

against “‘habitual pattern[s] of conduct to determine whether there is a

substantial probability of future neglect or deprivation.’” E.M., 4 N.E.3d at 643

(quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule, “trial courts have

properly considered evidence of a parent’s prior criminal history, drug and

alcohol abuse, history of neglect, failure to provide support, and lack of


adequate housing and employment.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct.

App. 2011). In addition, DCS need not provide evidence ruling out all

possibilities of change; rather, it need establish only that there is a reasonable

probability the parent’s behavior will not change. In re Involuntary Termination

of Parent-Child Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

“We entrust that delicate balance to the trial court, which has discretion to

weigh a parent’s prior history more heavily than efforts made only shortly

before termination.” E.M., 4 N.E.3d at 643. When determining whether the

conditions for the removal would be remedied, the trial court may consider the

parent’s response to the offers of help. D.B., 942 N.E.2d at 873.

[28] Here, the conditions that led to Children’s removal was neglect related to

Mother’s substance abuse. Appellant’s App. Vol. 2 at 28. As a result of the

CHINS adjudication, Mother was ordered to maintain stable housing, not use

illegal drugs, obey the law, participate in intensive family preservation services,

participate in home-based counseling, complete a substance abuse assessment,

complete random drug screens, follow all terms of probation, and participate in

visitation. Id. at 36-41, 87-92, 142-47, 198-203. However, the evidence

presented at the evidentiary hearing showed that Mother failed to accomplish

many of these objectives.

[29] DCS provided Mother with substance abuse treatment through Blair, but

Mother failed to consistently attend treatment. Tr. Vol. 2 at 96-99. Mother

completed a substance abuse assessment with Blair, who recommended that

Mother participate in individual therapy to address substance use, triggers, and


coping skills; case management; parenting education; and more education on

substance use.” Id. at 98. Blair believed that without treatment, Mother would

continue to use illegal substances because she would not have the “coping skills

or ability to manage her emotions.” Id. Mother began treatment in December

2016; however, it was difficult for Blair to manage Mother’s recovery without

long-term consistent treatment. Id. at 98, 100. There were periods where

Mother would engage in treatment consistently for a month, and then her

participation would “[f]all off,” and Mother’s stints of incarceration made her

unable to attend treatment. Id. at 99. The last time Blair met with Mother was

when she saw her in the Clark County Jail in November 2018. Id.

[30] Mother “had a lengthy history of using substances” and had used drugs since

she was a teenager. Id. at 97. Evidence was presented that Mother continued

to struggle with substance abuse and continued to use drugs. As discussed

above, evidence was presented to show that throughout the proceedings, she

tested positive for illegal drugs and alcohol, beginning in November 2016 and

continuing until at least October 2017. Additionally, Mother engaged in

multiple drug-related criminal activities while the termination proceedings were

pending. In April 2017, Mother pleaded guilty to Level 6 felony possession of

methamphetamine and Level 6 felony auto theft. Ex. Vol. 4 at 27, 37. Several

petitions to revoke probation were filed against Mother because she tested

positive for illegal substances and failed to comply with substance abuse

treatment. Id. at 28-31, 39-41, 43, 57-60, 63-66. As a result of these petitions to

revoke, Mother’s suspended sentence was revoked, and she was incarcerated at


the time of the termination proceedings and still had approximately four

months to serve. Tr. Vol. 2 at 41-44. Mother was also charged with numerous

other charges, including Level 6 felony escape, two counts of Level 6 felony

possession of methamphetamine, Level 6 felony possession of a narcotic drug,

Class A misdemeanor possession of a synthetic drug or lookalike substance,

Class C misdemeanor possession of paraphernalia, Level 6 felony theft, and

Class B misdemeanor unauthorized entry of a motor vehicle. Ex. Vol. 4 at 73,

78, 90, 98.

[31] Further, Mother did not consistently maintain contact with her FCM, and

although the evidence showed that Mother participated in some visitations with

Children, she was not consistent in doing so due to her frequent incarceration.

Tr. Vol. 2 at 68, 69, 124. DCS is not required to rule out all possibilities of

change; it need only establish that there is a reasonable probability the parent’s

behavior will not change. In re Kay L., 867 N.E.2d at 242. “A pattern of

unwillingness to deal with parenting problems and to cooperate with those

providing social services, in conjunction with unchanged conditions, support a

finding that there exists no reasonable probability that the conditions will

change.” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372

(Ind. Ct. App. 2007), trans. denied. Also, as we have recognized, “Even

assuming that [the parent] will eventually develop into a suitable parent, we

must ask how much longer [the child] should have to wait to enjoy the

permanency that is essential to her development and overall well-being.” Castro


v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006), trans.

denied.

[32] At the time of the evidentiary hearing, Children had been removed from the

home, and DCS had been working with Mother for almost three years, and

Mother had barely complied with any of the services provided by DCS. She

had not remedied her substance abuse issues and had only minimally

participated in other services. This failure to consistently participate in services

in order to reunify with Children, as well as Mother’s continued use of drugs

and engagement in criminal activity, supported the juvenile court’s conclusion

that there was a reasonable probability Mother would not remedy the

conditions resulting in Children’s removal and continued placement outside her

care.

[33] Mother next argues that the juvenile court’s findings did not support its

conclusion that termination of her parental rights was in the best interests of

Children. She contends that, contrary to the juvenile court’s finding, the

evidence did not support that the FCM, Children’s therapist, and CASA

recommended that termination was in the best interests of Children. Mother

further asserts that the totality of the evidence did not support the juvenile

court’s conclusion because there was undisputed evidence that Children were

bonded with Mother and that Mother interacted appropriately with Children

during visitations, and there was nothing in the record to suggest that Children

would be harmed by continued placement with the foster family until Mother

could be reunited with them. Mother also points to testimony from Children’s


therapist and the FCM that seemed to suggest that Children should continue to

have a relationship with Mother.

[34] In determining what is in the best interests of the child, a trial court is required

to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.

App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

denied), trans. dismissed. In doing so, the trial court must subordinate the

interests of the parents to those of the child involved. Id. Termination of a

parent-child relationship is proper where the child’s emotional and physical

development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.

App. 2002), trans. denied). A parent’s historical inability to provide a suitable,

stable home environment along with the parent’s current inability to do so

supports a finding that termination is in the best interests of the child. In re A.P.

981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service providers, in

addition to evidence that the conditions resulting in removal will not be

remedied, are sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.

Ct. App. 2014), trans. denied.

[35] A juvenile court need not wait until a child is irreversibly harmed such that his

or her physical, mental, and social development is permanently impaired before

terminating the parent-child relationship. In re A.K., 924 N.E.2d at 224.

Additionally, a child’s need for permanency is an important consideration in

determining the best interests of a child. Id. (citing McBride v. Monroe Cty. Office

of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).


[36] At the time of the termination hearing, Children had been removed from

Mother’s care for almost three years, and Mother had failed to make the

changes necessary to provide Children with a safe and healthy environment.

As discussed above, DCS presented sufficient evidence that there was a

reasonable probability that Mother would not remedy the reasons for Children’s

removal from her care because she continued to use drugs and engage in

criminal activity. Further, at the time of the evidentiary hearing, Mother was

incarcerated in part for activity related to drugs. Additionally, the FCM and

the CASA, as well as the Children’s therapist, all testified that they believed

termination of Mother’s parental rights would be in Children’s best interests.

Tr. Vol. 2 at 25, 69-70, 131. The FCM testified that she believed Children were

entitled to permanency and being in the foster home was the best thing for

Children “moving forward.” Id. at 71. The CASA testified that she

recommended that Mother’s parental rights be terminated because Children

were entitled to stability and a caring home, which the foster home was

providing. Id. at 131. Based upon the totality of the evidence, we conclude that

the evidence supported the juvenile court’s determination that termination of

Mother’s parental rights was in Children’s best interests. Mother’s arguments

to the contrary are a request to reweigh the evidence, which we cannot do. In re

H.L., 915 N.E.2d at 149.

[37] Based on the record before us, we cannot say that the juvenile court’s

termination of Mother’s parental rights to Children was clearly erroneous. We,

therefore, affirm the juvenile court’s judgment.


[38] Affirmed.

Baker, J., and Crone, J., concur.

court of appeals of indiana - in.gov · id. at 25. [12] on august 9, 2018, dcs filed petitions to...

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